Profiling Is Great ... Except When You Do It to Me

Will the IRS's scrutiny of Tea Party groups convince conservatives that all kinds of profiling are wrong?

Tea Party supporter Susan Clark of California, dressed in Colonial garb and face paint, rings a bell to show her opposition to Obama health care legislation as the law's supporters rally on the sidewalk during the third and final day of legal arguments over the Patient Protection and Affordable Care Act at the Supreme Court in Washington, March 28, 2012.

Photo by Jonathan Ernst/Reuters

Pretend you work at the Internal Revenue Service. Actually, let’s make this exercise even more terrible. Pretend you’re an underpaid, low-level clerk working in the understaffed IRS backwater of Cincinnati. Every day, a big stack of files lands on your desk. Every day, the stack gets a little bigger than the last. Each file represents a new application for a certain tax status—501(c)(4), a tax-exempt designation meant for “social welfare” organizations. Nonprofits with this status aren’t required to disclose the identity of their donors and they’re allowed to lobby legislative officials. The catch is that they must limit their political campaign activity. According to IRS rules, 501(c)(4) groups can participate in elections, but electioneering must not be their “primary” mission.

Got all that? Good—now let’s get to work. It’s your job to decide which 501(c)(4) applications represent legitimate social-welfare organizations, and which ones are from groups trying to hide their campaign activities. What’s more, you’ve got to sort the good from the bad very quickly, as you’re being inundated with applications. In 2010, your office received 1,735 applications for 501(c)(4) status. In 2011, the number jumped 30 percent, to 2,265, and in 2012 there was another 50 percent spike, this time to 3,357 applications.

So what do you do? You look for a shortcut. Someone at your office notices that a lot of the applications for 501(c)(4) status are from groups that claim to be part of the burgeoning Tea Party movement. Aha! When you’re looking for signs of political activity, wouldn’t it make sense to search for criteria related to the largest new political movement of our times? So that’s what you do: Without consulting senior managers, you and your colleagues set up a spreadsheet called “Be on the Lookout,” or BOLO, which spells out specific criteria for flagging potentially politically active groups. The spreadsheet lists keywords like “Tea Party,” “Patriots,” and “9/12 Project.” It also flags groups whose primary concerns are government spending, debt, and taxes, that criticize how the country is being run, or that advocate policies that seek to “make America a better place to live.”

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We’ll get to whether this was right or wrong in a bit. For now, let’s note that there’s a name for the kind of shortcut that the IRS’s Cincinnati office used to pick out applications for greater scrutiny: “profiling.” By using superficial characteristics—groups’ names or mission statements—to determine whether they should be subject to deeper investigation, the IRS was acting like the TSA agent who pulls aside the guy in the turban, or the FBI agents that target mosques when investigating terrorism, or New York City cops who stop and frisk young black males in an effort to prevent crime.

All these efforts rely on the same intellectual justification—looking at surface characteristics makes sense because they’re a potential signal of deeper activity, whether it’s terrorism or crime or electioneering. As a right-wing blogger might say, “Not all Muslims are terrorists—but most terrorists are Muslims.” If you believe that, doesn’t it make sense to focus on Muslims when you’re fighting terrorism? Take it away, Michelle Malkin: “Where else are federal agents supposed to turn for help in uncovering terrorist plots by Islamic fanatics: Buddhist temples? Knights of Columbus meetings? Amish neighborhoods?”

That’s exactly what the IRS was doing with Tea Party groups. Not all Tea Party groups applying for 501(c)(4) status were engaged in campaign politics. But out of all the many groups that applied for such status, wouldn’t any reasonable person guess that a group called “Tea Party Patriots” is more likely to be engaged in campaign activity than, say, a group focused on rescuing abandoned puppies?

The deep irony of the IRS scandal is that people on the political right are being subjected to exactly the kind of profiling that they’ve long advocated in fighting terrorism and crime—and they don’t seem to appreciate it. I’m on their side: This case perfectly illustrates why profiling is wrong—why it’s inefficient, ineffective, and morally dubious. The IRS scandal should thus be a lesson to anyone who’s called for any kind of profiling, whether it’s racial, religious, or political. If you believe it was wrong for the government to single out certain groups just because of their names, then you’re really arguing that government officials should look for deeper characteristics when deciding whom to investigate. If you don’t like what happened at the IRS, then, you’re arguing that profiling is bad policy.

The inspector general’s report on the IRS’s targeting of Tea Party groups offers a couple of primary reasons why we should object to profiling. One, it’s unfair—and government officials, the report argues, should make an effort to treat everyone fairly. Profiling Tea Party groups violated this basic tenet: Going after certain groups because of their names “gives the appearance that the IRS is not impartial in conducting its mission,” the report says. Instead, the inspector general argues that the IRS should have looked deeper—not at superficial characteristics like their names, but at “the activities of the organizations and whether they fulfill the requirements of the law.”

This is the moral case against profiling: You should look at the substance rather than the surface—look at what a person does, not what he looks like. And it’s one that conservative pundits find pretty hilarious. Why should we expect the government to apply its resources “fairly” if the world isn’t fair? “It is terribly unfair we can't find an international terrorist organization that ‘looks like America,’ as they used to say in the Clinton administration,” says Jonah Goldberg. “But the sad truth is the people responsible all happen to be Middle Easterners.” He adds: “You have to be a fool to willingly fish where there are no fish just because you want to be fair to everyone.”

A cynic could make the same argument about the Tea Party. Of the 298 applications for tax-exempt status that were pulled aside for closer review by the IRS, about a third were related to Tea Party groups. More than 200 were unrelated to the Tea Party, which the IRS says is proof that the agency was not being “politically biased” in its selection for further review. But the inspector general disputes that—the report notes that all groups with “Tea Party” or related terms in their names were given closer scrutiny. But why shouldn’t that be the case? A “Tea Party” group is, by definition, interested in politics. If you’re fishing for groups that want to influence elections, wouldn’t that be a pretty good pool to fish? Wouldn’t it have been foolish to look at other groups just to be “fair”?

Actually, no. This gets to the inspector general’s second criticism of profiling: It didn’t work. The IG found that of the 298 groups that the IRS selected for further review, 91 showed no sign that they were engaged in “significant political campaign intervention.” Seventeen of those 91 groups were Tea Party organizations, meaning that 19 percent of all false positives were caused by profiling. Thanks to profiling, the IRS was spending a lot of time scrutinizing groups it shouldn’t have been looking at.

But that’s not all. The IG says that as a result of profiling, there was also a high false-negative rate—investigators were quickly approving certain groups even though they were likely to have engaged in political activity, all because they didn’t fit the profile. This is the Richard Reid scenario: Sometimes, a white guy tries to blow up a plane. Sometimes, two Caucasians blow up a sporting event. If you’re only looking for the brown guys, you’re going to miss those cases. Based on a statistical sample of applications it reviewed, the IG says there were a total of 185 cases that should have been flagged for further review but weren’t. That’s because, instead of looking at those cases, investigators were spending their time looking at groups with “Tea Party” in their names. About 2 percent of applications that were ultimately approved fell into this category, the report says.

By profiling Tea Party groups, not only was the IRS applying its rules unfairly, it was also spending a lot of time investigating good guys, and it was letting a few bad guys through without extra scrutiny. If you wanted to make a case against profiling, you couldn’t pick a better example than what happened here.

I suspect that longtime advocates of profiling won’t agree with me. They’ll argue that racial profiling in crime- or terrorism-prevention is more appropriate than the “political” profiling the IRS conducted. That’s because, they’ll likely say, profiling works in those instances. There are numerous studies that show that’s not true—that we simply don’t know whether racial profiling is an effective way to combat terrorism.

Even if Tea Party partisans don’t buy that argument, they now at least know what it feels like to be investigated just because of their characteristics, not their actions. They don’t like it, and in this case they should trust their instincts. They’re right. Profiling is wrong.

Farhad Manjoo is a technology columnist for the New York Times and the author of True Enough.

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